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Re: Court won't force state to defend Prop. 8

Originally Posted by Hicup

Hehe. I thought you were a lawyer? Of course it matters.

CT - I did provide a pretty decent argument as to why I thought legally, that, the 14th Amendment challenge did not apply to Prop 8. It was very detailed I am NOT going to right it all out again. However, and the reason I made my comment earlier in this thread, is that the proponents of Prop 8 should have argued that marriage isn't a fundamental right, and if it were a "fundamental-right", it would only ever be a right of people within the state that have a presumptive, and intrinsic ability to procreate. If the state has no vested interest in procreation, then it has no business at all in marriage. Since it is in the marriage business, then it is incumbent on the state to protect this construct; in fact, even restrict it to those who possess the intrinsic ability to realize the benefits that their bonding would impart on the state.

Furthermore, the state contradicts itself with the right to contract in marriage when, and if the state ignores all portions of the contract should the happy couple divorce. If the state ignores the contract in its totality, then the contract isn't fundamental to the marriage.

And finally, Due Process was followed by the state of California. It did not violate the due process clause.

So to recap:

1. If marriage isn't a fundamental right, then there is no valid 14th challenge, and the states are free to regulate marriage as they see fit.
2. If it is a fundamental right, then the court should take the opportunity to properly, and once and for all articulate that marriage should only ever be fundamental to those that posses the intrinsic ability to procreate. A child has a right to know both of his or her parents. They have a right to both a mother, and a Father. Not a partner and another partner.
3. The marriage contract is a contract in every legal definition, yet the state in no fault divorce ignores the contract, therefore the right to contract in marriage is not fundamental to it.
4. Due process was followed.
5. Gender discrimination is akin to any legal definition of individual identity. They are the same in legal terms. It opens up the state to a whole host of marriages.

Tim-

First off, they would need to overturn about 70 years of Supreme Court precedent which holds that marriage is a fundamental right.

Next, they would need to prove that the state has an interest in denying same sex couples the right to marriage on grounds of procreation but also has an interest in providing opposite sex couples who are infertile, too elderly to conceive, too ill to have children, or who simply choose not to have children the right to marry on those grounds.

Also, they need to demonstrate that interest is greater than the 80 findings of fact that Walker laid down that same sex marriage would be beneficial to the state of California.

Finally, they would need to demonstrate that California did pass the appropriate tier of scrutiny necessary for restricting a right along the lines of sex in order to demonstrate that they did not violate Due Process. You might want to look up the tiers of scrutiny if you don't understand the concept, which appears you might not since you are simply stationg that they did not violate Due Process, without actually providing any reasoning as to how they didn't.

Re: Court won't force state to defend Prop. 8

If you're going to try to be lawyerly and parse the issue thusly . . .

What, specifically, is the equal-protection argument here? As in, what is being denied one group that a another group has? Specifically?

'Coz while I think there are other compelling arguments in favor of same-sex marriage, "equal protection" arguments have always failed to impress me.

Those arguments failed to impress me, too; that is, until I read this particular argument against prop 8. And you know what's being denied here - marriage. Of course, we can always go back to the argument that homosexuals can get married to someone of the opposite gender, which ignores the fact that homosexual couples don't want to break up their entirely normal relationships simply to include themselves in the so-called traditional definition of marriage, which is why they are seeking inclusion to begin with.

Re: Court won't force state to defend Prop. 8

Originally Posted by Singularity

Those arguments failed to impress me, too; that is, until I read this particular argument against prop 8. And you know what's being denied here - marriage. Of course, we can always go back to the argument that homosexuals can get married to someone of the opposite gender, which ignores the fact that homosexual couples don't want to break up their entirely normal relationships simply to include themselves in the so-called traditional definition of marriage, which is why they are seeking inclusion to begin with.

It has to be more than the mere denial of marriage -- it has be based on some illegitimate factor, wherein one group can do something that another group can't. You're right -- straight men can no more marry other men than gay men can.

So, what exactly is being denied? Remember, we're talking about parsing this legally, not emotionally.

“Offing those rich pigs with their own forks and knives, and then eating a meal in the same room, far out! The Weathermen dig Charles Manson.”-- Bernadine Dohrn

Re: Court won't force state to defend Prop. 8

Originally Posted by Harshaw

It has to be more than the mere denial of marriage -- it has be based on some illegitimate factor, wherein one group can do something that another group can't. You're right -- straight men can no more marry other men than gay men can.

So, what exactly is being denied? Remember, we're talking about parsing this legally, not emotionally.

One group can do what another group cannot, yes? Legally, heterosexual couples can get married, whereas homosexual couples cannot. I'm not sure what, exactly, you are looking for when you mention parsing this legally not emotionally, because i'm not parsing any sentence, nor any clause, nor any Amendment to the Constitution emotionally.

Re: Court won't force state to defend Prop. 8

Originally Posted by Hicup

1. If marriage isn't a fundamental right, then there is no valid 14th challenge, and the states are free to regulate marriage as they see fit.

WRONG. You are completely wrong from the beginning of your analysis. Constitutional protections such as Equal protection apply to more than just fundamental rights.
There is a higher level of scrutiny applied by the Court when the right involved is a fundamental right. However, Constitutional guarantees apply to all rights/privileges extended by the state.

Re: Court won't force state to defend Prop. 8

Originally Posted by disneydude

WRONG. You are completely wrong from the beginning of your analysis. Constitutional protections such as Equal protection apply to more than just fundamental rights.
There is a higher level of scrutiny applied by the Court when the right involved is a fundamental right. However, Constitutional guarantees apply to all rights/privileges extended by the state.

Not to mention that marriage is, in fact, a fundamental right. Loving v. Virginia.

He touched her over her bra and underpants, she says, and guided her hand to touch him over his underwear

Re: Court won't force state to defend Prop. 8

Originally Posted by CriticalThought

First off, they would need to overturn about 70 years of Supreme Court precedent which holds that marriage is a fundamental right.

Next, they would need to prove that the state has an interest in denying same sex couples the right to marriage on grounds of procreation but also has an interest in providing opposite sex couples who are infertile, too elderly to conceive, too ill to have children, or who simply choose not to have children the right to marry on those grounds.

Also, they need to demonstrate that interest is greater than the 80 findings of fact that Walker laid down that same sex marriage would be beneficial to the state of California.

Finally, they would need to demonstrate that California did pass the appropriate tier of scrutiny necessary for restricting a right along the lines of sex in order to demonstrate that they did not violate Due Process. You might want to look up the tiers of scrutiny if you don't understand the concept, which appears you might not since you are simply stationg that they did not violate Due Process, without actually providing any reasoning as to how they didn't.

I wish both you and them luck in that quest.

RE: 70 years of precedent.

Well, they would need to do this if it were to held that marriage wasn't a fundamental right, however, if it is as fundamental right, then they only need to articulate why it is fundamental, and to whom it is findamental too.

RE: Denying based on procreation.

It's not just about procreation per se, it is in the meaning of fundamental. If marriage is fundamental, then what is it about marriage that makes it so? As near as I tell, and of all the arguments I've seen in favor of SSM, I've never seen anyone argue successfully that the state has ANY interests outside of procreation. So, assuming the state is in for the kids, then we need to look at the fundamental design of humanity. inter alia, humans, like every other species on the planet are designed to procreate. With some exceptions, all of them do it with some part of the male interacting with some part of the female. So, fundamentally, it is pressumed that men and women are observably consistent with the correct way to bond, and produce offspring. It is intrinsic to humanity, it is pressumptive that when men and women bond, they produce children. That some don't, and that some can't, is immaterial to these intrinsic chacteristics. One thing we do know. Homosexuals cannot, by virtue of their condition, procreate with each other. There is no ambiguity there.

RE: 80 findings of fact.

Well, I haven't read them all, but any list of benefits homosexual marriage would impart on the state is lacking one major fact. See above. What benefits, other than procreation does the state care about? Why should it?

RE: Scrutiny.

Of course I'm aware of the tiers. Either way, the proponents of Prop 8 can win with either argument. Moreover, my argument avoids a 14th challenge if the court finds that marriage isn't fundamental. If its not fundamental, then the 14th doesn't apply.

Tim-

“When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.” - P. J. O’Rourke
“Socialism is great until you run out of someone elses money” Margaret Thatcher

Re: Court won't force state to defend Prop. 8

Originally Posted by disneydude

WRONG. You are completely wrong from the beginning of your analysis. Constitutional protections such as Equal protection apply to more than just fundamental rights.
There is a higher level of scrutiny applied by the Court when the right involved is a fundamental right. However, Constitutional guarantees apply to all rights/privileges extended by the state.

Perhaps, but what it does do is keep it out of the federal courts. Either way, marriage was argued by both sides to be fundamental, so any discussion on whether it is a priviledge is immaterial to the instant case. Because they argued it was findamental without laying down the ground work for why it is, the proponents of Prop 8 gave Walker a way to rule against them.

Tim-

“When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.” - P. J. O’Rourke
“Socialism is great until you run out of someone elses money” Margaret Thatcher

Re: Court won't force state to defend Prop. 8

Originally Posted by Deuce

Not to mention that marriage is, in fact, a fundamental right. Loving v. Virginia.

Yes but that was heterosexual marriage. It has no bearing on a case where homosexuals want to marry, so there is no precedence, per se. Walker knew it, so that's why he chose the "gender" route. It was his only way out. I went further and argued that gender is the same as identity; of which, gender is only one component.

Tim-

“When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.” - P. J. O’Rourke
“Socialism is great until you run out of someone elses money” Margaret Thatcher

Re: Court won't force state to defend Prop. 8

Originally Posted by Hicup

RE: Denying based on procreation.

It's not just about procreation per se, it is in the meaning of fundamental. If marriage is fundamental, then what is it about marriage that makes it so? As near as I tell, and of all the arguments I've seen in favor of SSM, I've never seen anyone argue successfully that the state has ANY interests outside of procreation. So, assuming the state is in for the kids, then we need to look at the fundamental design of humanity. inter alia, humans, like every other species on the planet are designed to procreate. With some exceptions, all of them do it with some part of the male interacting with some part of the female. So, fundamentally, it is pressumed that men and women are observably consistent with the correct way to bond, and produce offspring. It is intrinsic to humanity, it is pressumptive that when men and women bond, they produce children. That some don't, and that some can't, is immaterial to these intrinsic chacteristics. One thing we do know. Homosexuals cannot, by virtue of their condition, procreate with each other. There is no ambiguity there.

Unfortunately, I don't see how this argument - the belief that men and women have a 'correct' way to bond, and that this "fundamentally correct way" is the very basis for determining marriage legality - eliminates the inclusion of homosexual couples into the institution. In addition, it still has not provided an adequate explanation as to why infertile couples can be included whereas homosexual couples cannot. You can say it's the 'correct way to bond', but clearly if infertile heterosexual couples are trying this so-called 'correct way' and it isn't working, then what? Are they eliminated from the institution?

Furthermore, 'correct' implies a subjective moral position here. A man a woman engaging in sexual intercourse may be the 'correct way to bond' (implying male/female copulation), but so is IVF, otherwise you've still eliminated infertile couples. Unfortunately for the 'correct way to bond' argument, there is no basis for exclusion, as there are a few 'correct ways to bond' nowadays - some of which don't require marriage. I believe that this argument is merely a doctored-up version of the "homosexuality is unnatural" argument - nothing more.

Another thing: If "assuming the state is in for the kids" as you say, then why do we need "to look at the fundamental design of humanity" as an argument for excluding same sex marriage? The "fundamental design of humanity" as far as which parts go where has nothing to do with the actual raising of children, and if the state is in fact in it for the kids, then it seems that you have provided the proponents of same sex marriage some amunition, as there are plenty of homosexual couples who are willing to adopt and provided loving homes for children.